MORGAN v. REGAN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 19, 1984

MORGAN, Plaintiff
v.
REGAN, Defendant

The opinion of the court was delivered by: JACKSON

JACKSON, District Judge.

Plaintiff Morgan, a black printer employed by the Bureau of Engraving and Printing ("BEP") of the U.S. Treasury Department, sues the Secretary of the Treasury under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-1 et seq., for retroactive promotion and back pay, alleging that BEP engaged in race discrimination to his injury in the course of its selection of candidates to fill some 30 Plate Printer (Intermediate) ("PPI") positions beginning in July, 1978.
*fn1"
Upon the facts found as hereinafter set forth in accordance with Fed. R. Civ. P. 52(a) following trial without jury, and the conclusions of law drawn therefrom, for the reasons stated the Court will enter judgment for defendant.

I.

BEP is the agency within the U.S. Department of the Treasury which prints all United States currency and most of its official stamps. Its Office of Currency Production and Stamp Printing is responsible for production of currency and stamps, within which the Superintendent, Plate Printing Division (the "Division"), directs its day-to-day operations.

All United States currency is printed by high-speed, sheet-feed rotary intaglio (i.e., incised plate) presses. Stamps are printed by high speed multi-colored sheet or web-fed intaglio or gravure presses. Both species of press are large, sophisticated pieces of equipment capable of printing thousands of sheets per hour. Mistakes can occur quickly, may be difficult to detect and costly to rectify, and give rise to concerns for the security of defective work which has value precisely because it is defective. Consequently, the skill, reliability and integrity demanded of the plate printers who operate the presses, as well as the remuneration they receive for doing so, are considerable.

The Plate Printing Division employs about 130 high-speed intaglio printers, well over half the number of all such printers in the United States. (The remainder are employed by three private bank-note companies). The Division operates 20 high-speed plate presses, 17 of which are intaglio presses; two are gravure, and one is a combination intaglio-gravure press.

In the mid-1970's, BEP came to the realization that a significant proportion of its journeymen plate printers were approaching retirement age. Simultaneously the Federal Reserve Board, which orders and distributes the nation's currency, notified BEP that it intended to increase the amount of currency in circulation. Confronted with both a projected personnel shortage and an imminent need for increased production, BEP officials concluded that filling the large number of anticipated vacancies through the traditional four-year apprenticeship program would not enable BEP to keep up with demand, and it cast about for ways to augment its plate printing workforce quickly.

After consultations with the plate printers' union, therefore, BEP resolved to create a new position, to be known as the "plate printer (intermediate)" (or "PPI"), for which, in lieu of the four-year apprenticeship, applicants having relevant prior experience would be hired to become journeymen plate printers after an abbreviated training program.
*fn3"
Once the decision had been made to replace retirees with PPI's, BEP embarked on the process of finding the most promising among those who might apply by utilizing a recognized (but controversial) technique known as the "job element evaluation selection method" which attempts to identify and articulate the knowledge and skills necessary to perform successfully in the position to be filled.
*fn4"

While the crediting plan was being formulated, BEP began the process of advertising the PPI vacancies. Copies of the vacancy announcements were posted throughout BEP, distributed nationwide by the Civil Service Commission, and sent to all government agencies in Washington, D.C., including the Government Printing Office. BEP also undertook to advertise the vacancies in 28 newspapers nationwide, eight of which were chosen because they were primarily addressed to black readerships.

The application season for the 1978 PPI competition ran from July 14 to October 6, 1978. BEP estimates that it received approximately 850 applications for the PPI positions of which some 350 to 400 applicants possessed basic qualifications.
*fn8"

At about the time the recruitment began, a major gravure printing plant in Philadelphia owned by Triangle Publications ("Triangle") ceased operations, laying off about 250 journeyman printers. The president of the printers' union local at Triangle saw BEP's ad for the PPI program in a Philadelphia newspaper and called the members' attention to it. As a result about 150 former Triangle printers applied, only one or two of whom were black.

Approximately 12 BEP employees from outside the Plate Printing Division also applied, including plaintiff Morgan (then working as a janitor), a former black co-plaintiff (a bookbinder), and approximately 10 pressmen from two other divisions, all but one of whom were white. Thus, three of 12 in-house BEP applicants were black.

Each application was rated by three different raters.
*fn9"
Each rater assigned a score of from one to four on each of the four elements graded, but whenever a discrepancy of two or more points would occur between the ratings given by different raters on the same element to a particular applicant, the application was returned to the raters to attempt to resolve the disparity.

Morgan's application lists a variety of full or part-time positions previously held as an offset pressman prior to applying for the PPI position in 1978. The majority of plaintiff's offset experience, as reflected by his application, was acquired during a ten-year stint as an assistant pressman at the Department of the Interior from 1960 to 1970.
*fn11"
His only journeyman experience occurred during a three-month period in 1972 on a small single-color offset machine, and an additional eight-month span from mid-1974 to the beginning of 1975 when he divided his time between single and multi-color offset presses. For the three years immediately preceding his application while working as a janitor at BEP, Morgan had moonlighted at a private firm as a duplicating machine operator.

After all applications had been rated (excluding those screened out initially by the personnel specialist), the applications, along with the ratings, were submitted to the Civil Service Commission where they were reviewed for accuracy. The Commission then approved the ratings, issued a certificate of "eligibles" of some 80-90 names, ranked strictly in order of rating scores, and returned the certificate to BEP for the actual selections.

The selecting official was the then Superintendent of the Plate Printing Division. He arranged interviews with the people whose names appeared on the certificate, beginning with the person with the highest score and continuing down in rank order until all the available positions had been filled.
*fn12"
Altogether, he estimated, he interviewed about twice the number of vacancies to be filled. The initial selection of PPI's began on November 27, 1978, and continued until September 10, 1979, with 30 PPI's having been selected, and the same list was used again to select eight more PPI's in early 1980. Twelve of the first 30 PPI's selected were former Triangle printers. Another five were pressmen from elsewhere in BEP. Yet another five were offset printers employed at the time by two private Washington, D.C., area printers. All told, 22 of the first 30 PPI's selected came from only four prior employers, including BEP itself, and all 30 initial successful PPI applicants were white (although one was of Hispanic origin).
*fn13"

BEP's ostensible reason for not taking Morgan on as a PPI in 1978-79 is, quite simply, that at least as many others as there were positions available appeared to be better qualified than Morgan and the other black applicants on the basis of the best information it was able to assemble -- which did not include the race of any applicant -- and that the law does not require it to select minority applicants over others if their qualifications are no more than equivalent. Burdine, supra, at 259. The issue is, therefore, whether Morgan's evidence is sufficient to compel the conclusion that BEP did, indeed, notwithstanding its protestations to the contrary, intend to treat black applicants differently than whites, or that it used a selection process which was so designed or administered that it would inevitably cause qualified blacks to be relegated to the bottom of the eligibles list.

Morgan suspects a racial animus in the treatment given his PPI application -- and those of other black applicants -- but, not surprisingly, cannot prove it directly. The circumstantial evidence he offers from which, he argues, its presence should be inferred, however, is too ambivalent, ephemeral, or both, to sustain his burden of proof. He relies, for example, on mathematical laws of chance. Working backwards from official U.S. occupational statistics which suggest that between 1970 and 1980, five to eight percent of pressmen, plate printers, or "printing machine operators" in the country were black, and from estimates of BEP's own EEO officer that 30 percent of the in-house applicants were black, he submits that the fact that all of the first 30 PPI's selected were white males tends to prove that blacks, both within and without BEP, were deliberately passed over. But if the circumstance tends to prove what Morgan says it does, it also ignores the ethnic, sexual, or physical attributes of all the other unsuccessful applicants who might with equal force contend that they were rejected because they were whatever they were. The laws of mathematical chance are probative only in the context of random selection; BEP's selection process was deliberately constructed to be rational rather than random.

Morgan also tenders anecdotal evidence: a mildly racist joke exchanged by members of the rating panel; a rumored cronyism among selecting officials and plate printing foremen who were virtually all white males; nepotism (one successful applicant was the father of a senior BEP official); a belated and unspoken predilection for gravure experience; instances of allegedly exaggerated credentials being overlooked on successful applications.

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